N.M. Golvalker, J.
1. By this report under Section 438, Criminal Procedure Code, the Sessions Judge, Chhindwara, has recommended that the conviction of the accused-owner Jeewanlal under Section 42/123 of the Motor Vehicles Act, be set aside but the conviction on that count of accused Rameharan and Ramsingh be confirmed, and that conviction of Ramsingh under Section 22/ 122 of the said Act be set aside while the conviction on the said count of Rameharan and Jeewanlal be confirmed.
2. On 28-7-1963 while checking the passenger bus owned by Jeewanlal and which was driven by Rameharan with Ramsingh as its conductor it found to be overloaded by allowing more passengers to travel therein than what was permitted, and that the said vehicle was not registered, its registration under the Motor Vehicles Act having expired on 30-6-1963.
3. The trying Magistrate convicted not only the driver and the conductor but also the owner Jeewanlal although he was not present in the bus at the lime of checking.
4. According to the learned Sessions Judge, the owner could not be convicted with respect of the offence of overloading and the conductor could not be convicted with respect to the offence of plying the vehicle having no valid registration certificate. Hence, his recommendations as pointed out in the beginning.
5. In my opinion, the view taken by the learned Sessions Judge in recommending that the conviction of the accused-owner Jeewanlal be set aside cannot be accepted. The views expressed in the case of Mannasingh v. State 1960 MPLJ 384 : (AIR 1960 Madh Pra 151) could not be pressed into service by him in taking that view inasmuch as in that case the only question involved was whether a bus conductor and driver could be convicted or not, and not whether the owner could be convicted or not. Any observations with regard to the latter question would be no authority for deciding the question involved in the instant case.
6. I had an occasion to examine vicarious liability of the absentee owner with regard to the offences of overloading of passengers, of non-issuance of tickets to the passengers carried in the bus and of carrying unauthorisedly persons in a goods vehicle truck and I have held that the owner would be liable. Both these matters had arisen out of similar reports from the Sessions Judge, Chhindwara (See : Stale of M.P. v. Wamanrao Pethe Cri Revn. No. 358 of 1962 DA 12-2-1963 (MP) and The Stale of M.P. v. Purushottamlal Cri Revn No. 532 of 1963 D/- 14-2-1964 (MP). For taking this view I had pointed out the legal position which I would repeat again hereafter.
7. Undoubtedly criminal responsibility is generally regarded as being essentially personal in character. Even so it is accepted that there may be occasions or cases where a person without having the guilty mind may be found guilty and punished for an offence which is actually committed by another. This aspect of the law was considered by the Privy Council in the case of Sriniwas Mall v. Emperor ILR 26 Pat 460 : AIR 1947 PC 135 and it has been recognised therein that the offences which can be held to be committed without a guilty mind are usually of comparatively minor character where the relevant statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime. (See : Sherras v. De Rufzen (1895) 1 QB 918 at p. 921.) Now what those minor offences are or could be has been pointed out by Channell J. in the case of Pearks Gunston and Tee Ltd. v. Ward Henner, 1902-2 KB 1 at p. 11 and I may usefully hereunder quote his words:
'By the general principles of the criminal law, if a matter is made a criminal offence, it is essential that there should be something in the nature of mens rea, and, therefore, in ordinary cases a corporation cannot be guilty of a criminal offence, nor can master be liable criminally for an offence committed by his servant. But there are exceptions to this rule in the case of quasi-criminal offences, as they may be termed, that is to say, where certain acts are forbidden by law under a penalty, possibly even under a personal penalty, such as imprisonment, at any rate in default of payment of a fine; and the reason for this is, that the Legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea or not and whether or not he intended to commit a breach of the law. Where the act is of this character then the master, who, in fact, has done the forbidden thing through his servant, is responsible and is liable to a penalty. There Is no reason why he should not be, because the very object of the Legislature was to forbid the thing absolutely.'
8. The aforesaid Privy Council case has been noted by their Lordships of the Supreme Court in the case of Hariprasad Rao v. The State AIR 1951 SC 204. The question before the Supreme Court was whether a master even though absent on the occasion can be held vicariously liable for the act of his servant, in not observing the provisions of Clause 27A of the Motor Spirit Rationing Order (1941) which rends as under:
'When motor spirit is furnished against the surrender of one or more coupons, the supplier shall immediately endorse, or cause to be endorsed, on each coupon so surrendered the registration or other identifying mark of the vehicle' to which the motor spirit is furnished.'
According to the prosecution, petrol was supplied by the servant at the petrol pump without making the endorsements as required by the said clause on the coupons surrendered. The master, it was accepted, was then not present on the spot. Their Lordships accepted that where the Legislature prohibits an act or enforces a duty in such words as to make the prohibition or the duly absolute the master would be liable even though the prohibited act, or the omission is done by his servant. They have observed:
'The object of this clause clearly is that the supplier of petrol should set up a complete machinery to ensure that the necessary endorsements are made on the coupons against which petrol is supplied. It is conceivable that in many cases the default will be committed by the servants of the supplier, who are in charge of the petrol pump, but that fact by itself will not exonerate the supplier from liability.'
9. In this connection the observations of Atkin J. as under in Mousell Bros v. L and N. W. Rly. Co., 1917-2 KB 836 at p. 844 which were quoted with approval by the Supreme Court in the case already referred lo, may be again quoted:
'I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duly in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duly laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed. If authority for this is necessary it will be found in the judgment of Bowen L. J. in Reg. v. Tyler and Interna-lional Commercial Co., Ltd. 1891-2 QB 588 at p. 592 : 61 LJ MC 38.'
10. Thus, considering the objecl underlying the prohibition against overloading of the passengers, the duty cast for its due observance, the person upon whom it is imposed, and the person by whom it would in ordinary circumstances be performed, it will have to be held that even the absenlee owner can be held liable for the breach consequent to the overloading of the passenger bus. I may also refer to the views of Naik J., in the case of State of Madhya Pradesh v. Bundelkhand Transport Co., 1964 MPLJ 322 : (1964-2 Cri LJ 619). I, therefore, do not accept the recommendation of the learned Sessions Judge in so far as the accused-owner Jeewanlal is concerned and reject the same. His conviction under Section 42/123 of the Motor Vehicles Act is confirmed.
11. However, I accept the recommendation with respect to the conviction of the conductor Ramsingh under Section 22/122 of the Motor Vehicles Act and setting aside that conviction I direct his acquittal with respect to that offence only.
12. Thus, I answer the reference as above. Except for the conviction of Ramsingh, which is set aside as above, all other convictions by the trial Court arc confirmed.